Congress Street Properties, LLC v. Garibaldi's, Inc.
314 Ga. App. 143
| Ga. Ct. App. | 2012Background
- Garibaldi's built a ventilation system encroaching onto the airspace above Congress Street's adjacent property, payer built 1980 and continuously used thereafter.
- Garibaldi's acquired its property in 1979 and renovated to operate as Garibaldi's Cafe; system encroached on property once owned by Lumbar and Kahn.
- Lumbar and Kahn’s property was later purchased by Congress Street in August 2002; prior to closing Garibaldi's declined an attorney-backed request to acknowledge encroachment and remove the vent.
- Congress Street first demanded removal in July 2009; Garibaldi's filed for declaratory judgment asserting twenty-plus years of adverse possession.
- Trial court granted Garibaldi's summary judgment on adverse possession; concluded possession was public, continuous, exclusive, uninterrupted, peaceable, and of a right, with no evidence of fraud and no permission shown.
- Court reviews summary judgments de novo and analyzes adverse possession under OCGA § 44-5-161(a) with burden on Garibaldi's to prove elements and burden on Congress Street to rebut with permissive use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do Garibaldi's facts meet adverse possession elements? | Garibaldi's possession was public, continuous, exclusive, uninterrupted, peaceable, for 20+ years, with a claim of right. | Possession must be shown without permission; burden to prove lack of permission rests with Garibaldi's and the record may be insufficient. | Yes; elements satisfied; Garibaldi's established prescriptive title by preponderance. |
| Is the burden-shifting framework under OCGA § 44-5-161(b) properly applied? | Once elements under 44-5-161(a) are proven, the burden shifts to Congress Street to show permissive use. | Garibaldi's must prove lack of permission as part of prima facie case under 44-5-161(b). | Garibaldi's bore initial burden; burden shifted to Congress Street, which failed to prove permissive use. |
| Was summary judgment appropriate on the adverse possession claim? | Evidence supports all elements and lack of contrary evidence on permission. | Permissive use not rebutted; factual disputes may exist regarding original consent or permission. | Yes; summary judgment affirmed for Garibaldi's. |
Key Cases Cited
- Chancey v. Ga. Power Co., 238 Ga. 397 (1977) (presumption of a claim of right from dominion; fraud not presumed)
- Walker v. Sapelo Island Heritage Auth., 285 Ga. 194 (2009) (presumptions for adverse possession; claim of right)
- Cooley v. McRae, 275 Ga. 435 (2002) (elements of adverse possession; burden on claimant)
- Childs v. Summons, 272 Ga. 737 (2000) (presumptions in adverse possession cases)
- Roylston v. Conway, 251 Ga. App. 648 (2001) (adverse possession standards and burdens)
- Dyal v. Sanders, 194 Ga. 228 (1942) (burden of proof for prescriptive title by preponderance of the evidence)
- Ga. Transmission Corp. v. Worley, 312 Ga. App. 855 (2011) (statutory construction principles for related issues)